Belatedly, here are the summaries of last week’s decisions. Yesterday’s unsealed opinion in United States v. Trump will await a future post. Both decisions from last week come in lawsuits against Attorney General Garland relating to matters that have been in the news. The first, Langeman v. Garland, concerns the FBI’s decision to terminate Michael […]
On December 5th, the Supreme Court heard oral argument in Moore v. United States, a constitutional challenge to the mandatory repatriation tax (“MRT”) in the 2017 Tax Cuts and Jobs Act. The case raises basic questions about the scope of Congress’s taxing power, and has the potential to reshape and limit federal taxation. (Ben Silver had a nice […]
Here is the November Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You can check […]
Today, the Competitive Enterprise Institute has released a new report, by Ryan Young and Stone Washington, entitled Conflict of Justice: Making the Case for Administrative Law Court Reform. Here’s a taste of the report, from conclusion: Administrative law courts are unfair and regressive. They violate the separation of powers. They do not relieve regular court […]
In a pair of cases set for argument in January, the U.S. Supreme Court has been asked to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. I’m going to suggest that whether Chevron should be overruled isn’t exactly the right question. That’s because Chevron—at least the part of it that most people are interested in—didn’t make binding […]
Earlier this week I sat down with Eric Segall to participate in his Supreme Myths podcast. We chatted about about all things administrative law, including the major questions doctrine, the current cases (Loper Bright and Relentless) before the Supreme Court challenging Chevron deference, and SEC v. Jarkesy, the constitutional challenge the Court heard last week […]
Artificial intelligence (AI) is kryptonite to the Rule of Law. Where the Rule of Law demands “clear, general, publicly accessible rules laid down in advance,” advances in AI occur for unknown reasons, at unknown times, and with unknown effects. Where the Rule of Law requires prospective regulation, AI advances faster than the courts and Congress can handle. And, where the Rule of Law cautions against […]
Last week, the D.C. Circuit issued one holdover opinion in Blassingame v. Trump. The panel (Srinivasan, Katsas, Rogers) originally heard argument in December 2022. In Blassingame, the panel confronted the question whether former President Trump was “absolutely immune” from a suit for damages for actions leading up to and on January 6. Chief Judge Srinivasan’s […]
On Tuesday, the Supreme Court will hear oral argument in Moore v. United States, the Court’s first opportunity to squarely interpret the Sixteenth Amendment in the age of originalism. The Court granted cert on one question only: whether a provision of the 2017 Tax Cuts and Jobs Act called the Mandatory Repatriation Tax (“MRT”) is a […]
As part of my prep for this year’s ABA Administrative Law Conference, I put a list together of policy documents that have been issued by the Biden Administration as part or (or related to) efforts to modernize regulatory review. While much of the discussion about the Biden Administration’s regulatory approach has focused on, e.g., changes […]
At many law schools, the common law of torts is part of the required first-year curriculum. Yet today, especially in federal court, most cases invoking tort principles—indeed, a large portion of all civil cases—do not deal with battery, trespass, or products liability. Instead, they involve statutory torts. Law schools rarely teach statutory torts, however. I know of at least one […]
With the Supreme Court hearing argument in SEC v. Jarkesy on Wednesday, a lot of focus will be on the three separate constitutional questions presented in the case: The Fifth Circuit answered all three questions in the affirmative, and I would be shocked if the Supreme Court agreed on all three. But it’s quite possible […]
The D.C. Circuit did not publish any opinions for the week of November 20th. There were, however, oral arguments in United States v. Trump, which has been widely covered in the news media, United States v. Kerrick, a criminal sentencing case, and National Security Archive v. CIA, which concerns access to government records and involved […]
On Wednesday, the Supreme Court will hear oral argument in SEC v. Jarkesy, a major constitutional challenge to the future of agency adjudication and enforcement. In an essay forthcoming in the Ohio State Law Journal, David Zaring and I set forth a way for the SEC, Congress, or maybe even the Supreme Court could save […]
Happy Thanksgiving! Here is the October Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You […]